Saturday, 27 October 2012

Scotland and the EU - No.1 ~ Does legal advice exist?

Union Street Gardens, Aberdeen
Update 30th October: First Minister Alex Salmond shuns Scottish Parliament EU legal advice debate

I have always thought that the best answer to the Scottish Independence question would be for the United Kingdom to continue intact but internally change itself into a Federation.  Of course, such a solution is not without problems of its own but the possibility is not recognised by the recent Edinburgh Agreement which will offer the Scottish people a straightforward Yes/No vote on independence.

Previous posts at Scotland - Constitutional Futures Forum 2nd October 2012

A Federal solution might have the potential to avoid a very serious issue which could have massive impact not only on the people of Scotland but also on the people's of the remainder of the U.K. This is the important question of whether Scotland would remain a member of the European Union should independence come about.

Under the Treaty of Accession it was the United Kingdom of Great Britain and Northern Ireland which acceded to the European Communities from 1st January 1973.  Great Britain is England, Scotland and Wales.

It does not seem to automatically follow that an independent Scotland would continue as a member state of the European Union - see The Future of Scotland.

Freedom of Information request and decision:

The precise legal position is not crystal clear and a Member of the Scottish Parliament (Catherine Stihler MEP) applied to the Scottish Information Commissioner (Rosemary Agnew) to seek confirmation whether or not the Scottish government had sought legal advice on the question of EU membership in the event of independence coming about.  On 6th July 2012 the Commissioner issued decision notice 111/2012 "Legal Advice: Scotland's membership of the EU."

In May 2011, Ms Stihler asked the Scottish Ministers (the Ministers) whether they had taken legal advice on the status of Scotland within the European Union (EU) should Scotland choose to break away from the United Kingdom and, if so, whether she could be provided with a copy. However, the Ministers refused to reveal whether they had such legal advice. Following a review, Ms Stihler remained dissatisfied and applied to the Commissioner for a decision.  The Commissioner found that the Ministers had failed to deal with Ms Stihler’s request for information in accordance with Part 1 of [Freedom of Information (Scotland) Act 2002], by failing to reveal whether, as at the date they received her request, the legal advice existed or was held by them. If the information exists or is held, she required the Ministers to either provide the information to Ms Stihler or to issue a refusal notice, in terms of section 16 of FOISA, explaining why it is judged to be exempt from disclosure. If the information does not exist or is not held, she required the Ministers to notify Ms Stihler, in terms of section 17 of FOISA, that they do not hold the information.

The Commissioner found that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Ms Stihler. The Commissioner has found that the Ministers were not entitled to refuse to reveal, in terms of section 18(1) of FOISA, whether the legal advice in question exists or is held by them. The Commissioner therefore requires the Ministers to reveal to Ms Stihler whether the legal advice she requested existed or was held by them when they received her request. If the information was held, she requires the Ministers either to provide that information to Ms Stihler, or to issue a refusal notice in line with the requirements of section 16 of FOISA. If the information was not held, she requires the Ministers to issue a notice in line with the requirements of section 17 of FOISA.

For now, the matter rests there since an appeal - on points of law - is possible to the Court of Session.  Scotland's First Minister has indicated that it will be next year before the position regarding the EU is set out - Herald Scotland 13th September 2012

Serious Questions ~ few answers:

Would a federation enable the EU question to be avoided?

Would an independent Scotland have to apply for EU membership?

What are the implications for what remains of the UK following Scottish independence?

An interesting article is Professor Neil Walker's "Beyond the black and white of legal advice"

Doubtless, subjects to which we shall return.

Union Street Aberdeen, 1964


  1. Salmond did the only thing he could do! No one in the EU or NATO will answer this question as the UK is the current member state - so it is easy for the Unionists to attack? He now has to continue to promote the line that there is no earthly reason why Scotland would be ejected or rejected. But IMHO he would probably be better to explain why they cannot answer prior to a referendum result and quit the obfuscation???
    As regards a feral solution the SNP didn't block this the arrogant bast**ds in Westminster did because they could not live with the loss of control. Many SNP members IMHO could have lived with that but it was never on offer

    1. Thank you - I am grateful. I intend to follow this up with a further post in a day or two when I have done more research. At this stage, I suspect that, in the event of independence, some sort of pragmatism will eventually have to prevail. Scotland is not in the same position as a state seeking to accede to the EU for the first time.

      The way that the Scotland situation is handled will set a benchmark which some secessionist movements on mainland Europe may seek to have applied to their situation.

      My own belief is that the Union ought to be maintained and a federation would do that. However, Mr Salmond is not appearing in a good light when he engages in "obfuscation." However this may be, this blog tries to look at the legal questions though these do not exist in vacuum but only in the contexts in which they arise.

      The article by Professor Walker is most interesting.

  2. I doubt it's a legal question. In what court would it be adjudicated?

    It's worth pointing out that the question applies to the rump of England, Wales and Northern Ireland as much as to Scotland. If a state signatory to the treaties splits into two, it's hard to make the case that the treaties only apply to one of the pair. It's clear that a successor state could renounce any treaties that its parent entered into, but if it declares that it intends to abide by them, who can quarrel? Scotland will certainly wish to continue to abide by the treaties. England, Wales and Northern Ireland, perhaps not so much. At least there's a body of opinion, even within the governing party, that would relish renunciation.

    1. Yes, a view has been expressed in some places that the secession of Scotland from the UK would mean that the entire UK would have to re-apply for EU membership. I don't think that the view has much actual force but let's suppose for a moment that it does:

      1. Would the present government even bother to re-apply?

      2. If Scottish independence means loss of EU membership for the entire present UK then why isn't the entire UK being balloted? The economic future of the entire country is bound up with the question of EU membership.

      However, I don't think that what you refer to as "the rump" would actually lose EU membership though all sorts of difficult questions arise which I hope to touch upon in a later post.

      The EU operates within the law set out in the various Treaties. The Treaties are actually silent on the position regarding secession of part of an existing member state. The way is therefore wide open for a negotiated position which would retain Scottish membership. However, a great deal would depend on how Edinburgh plays its hand. If too many demands are made then this may drive the EU to insist on Scotland applying and having to go through the full accession process.

      Courts "as such" are perhaps unlikely to play much of a role in all of this other than perhaps being called upon to deal with particular issues as and when they arise.

      The Edinburgh agreement puts it beyond doubt that the Scottish Parliament will be empowered to hold the referendum. There was some debate about this and I was of the view that Westminster needed to act to make it possible - please see my post back in January. This proved to be correct.

  3. Sighs. Will you English stop going on about "Constitutions"? You do not have one. An unprinted one? That will get you as far as an unprinted £10 note shopping.

    1. The only reference to the word "Constitution" in the post is a reference to the Scottish Constitutional Forum.

      The UK does not have a written constitution as (e.g.) USA etc. However, it is nonsense to suggest that it does not have a constitution at all. Interestingly, the UK has managed to have remarkable political stability whereas many nations with written constitutions have not been at all stable.

      Scottish Independence raises many very important issues and they are not issues just affecting the people of Scotland even if they are the only ones who will get a vote. Membership of the EU is one such issue and the answer has the potential to affect the economic well-being throughout the UK.

    2. With the Civil Contingencies Act would a Constitution matter? You raise a good point with EU membership, will Catalunya, Euskera and Venice please note!

    3. The CCA 2004 retains Parliamentary control - the "constitution" is not affected
      Post on CCA 2004